Kamara v Davies and Others (Civ. App. 22/2007) [2009] SLCA 13 (18 June 2009);

CIV. APP. 22/2007











(On behalf of herself and As Headwoman






(On behalf of Himself and as Secretary of the












S. M. Sesay, Esq. of Serry-Kamal & Co.

J. ft Jenkins-Johnston of Jenkins-Johnston & Associates




This is an appeal from an Order of the High Court (Showers J) dated 22nd May 2007, granting an application by the Respondents, who were Defendants in the. High Court action, to set aside a Judgment dated 21st December 2004 obtained against them in default of appearance and leave to defend the action in the Court below.




The matter arose in this way. The Appellant had issued a Writ of Summons dated 26th August 2004, against the Respondents claiming, inter alia, a Declaration of title to two pieces of land situate lying and being at Grafton Village Western Area of Sierra Leone, and damages for trespass. In his Particulars of Claim, the Appellant, then Plaintiff, alleged that he bought one piece/parcel of the land from one Charlotte Cole of Main Motor Road Grafton, and the other parcel of land from Charlotte Cole and Adolphus



Huzzy respectively, both of Grafton Village. The said sale was evidenced by Conveyance dated 26lh April 1977 registered as No. 429/77 in Vol. 292 at Page 74 and Conveyance dated 30th October 1978 registered as No. 968/78 in Vol. 304 at page 98 of the Books of Conveyances in the Office of the Administrator General Freetown respectively. He claimed to have been in possession of the said land since purchase without any challenges made to his ownership thereof. In 2004, the Respondents formed themselves into a Committee, which they called "The Grafton Village Committee" (i.e. The 3rd Defendants herein) and through this Committee, interfered with and trespassed on the Plaintiffs said lands.


On the 28th September 2004, the Respondents, (then Defendants), entered a Conditional Appearance to the Writ of Summons. They did not file a Statement of Defence within the time limited for delivering a defence. By letter dated 1st November 2004, the Appellant's Solicitors wrote to their Solicitor reminding him to file a Statement of Defence; and giving him five (5) days, (i.e. up to 5th November 2004) within which to do so. They failed to comply.


On 1st December 2004, almost one month after that letter, and two months after the time allowed for filing a Defence, the Appellant's Solicitors took out a Motion for judgment, seeking that Judgment to be entered against the Respondents upon his Statement of Claim. The Learned Judge, (Showers, J) entered Judgment for the Appellant accordingly on 21st December 2004 in the following terms:


  1. A declaration that the Plaintiff is the fee simple owner and person entitled to
    possession of those two pieces of land delineated in survey plans numbered
    LS513/77 dated 12th April 1977 and LS657/78 dated 6th May 1978.

  2. Damages for trespass against the defendants assessed at Le 1,000,000.00.

  3. Damages for malicious damage against the defendants assessed at Le

  4. A perpetual injunction is granted against the defendants jointly and severally
    restraining the defendants jointly and severally from entering or remaining on
    the plaintiffs pieces of land and from interfering with the plaintiffs use and
    enjoyment of his property.

  5. The sum of Le 1,650,000.00 is awarded against the defendants in this action."


By letter dated 30th December 2004, the Appellant's Solicitor wrote to the Respondents asking them to vacant the land pursuant to the said Judgment. They did not.


The Appellant's Solicitors then issued a Combined Writ of Possession and Fieri Facias on 11th March 2005, to recover possession of the said land and the sum of Le 4,650,000.00 damages awarded by the said Judgment. The Respondents failed to vacate the property; and on 17th February 2006 the Appellant applied and was granted leave to issue out Writs of Attachment and contempt of Court against the Respondents, particularly Virginia Ayo Davies, Kebbie Sesay, Mohamed Sesay, Brima Sesay and




Sigismond Carew, for their failure to adhere to the Judgment. The Writs were returnable on Friday 24th February 2006. There is no record of what transpired on 24th February 2006.


On 26th March 2006, Brewah & Co. entered an appearance to the Writs of Attachments/Committal on behalf of the Respondents. On 1st November 2006, Jenkins-Johnston & Co, Solicitors entered an Appearance to the Writ of Summons for the Defendant, Kebbie Sesay.


On 15th January 2007, due to their inability to pay the Judgment debt, the Appellant applied for the Defendants (Respondents) to be examined as to their means. On 12th February 2007, the 1st and 2 Respondents appointed the firm of Jenkins-Johnston & Co. Solicitors to act for them as Solicitors in place of Brewah & CO.


On 14th February 2007, Jenkins-Johnston & Co on behalf of the Respondents, took out a Motion praying for an Order that the Judgment entered in default of appearance on 21st December 2004 and execution thereon be set aside for irregularity; alternatively, that the said Judgment and all proceedings be set aside and that the Respondents be granted leave to defend the action on the merits. Affidavits in Support of the application were filed exhibiting a proposed Defence and Counterclaim. There are averments in the Affidavit in Support sworn to by the 1st Respondent on 14th February 2007, which read inter alia:


(3) That I was lawfully and regularly elected Headwoman of the Village on the

21st day of September 2003 by the People of the Village, and in that capacity I
am responsible to seek the welfare of the people of the village, and to deal
with complaints brought by them to me.

  1. That some time in 2004 I received a complaint from several people in the
    village that the Plaintiff/Respondent had on several occasions gone round the
    village threatening the people of the village that he had bought the whole
    village and would deal with any one who opposed him.

  2. That upon investigation I found that the Plaintiff/Respondent has caused some
    17 Acres of Land right across the Village to be surveyed in his name, and that
    Two (2) Conveyances had also been prepared in his name.

(6) I know as a fact that neither CHARLOTTE COLE nor ADOPHUS HUSSY
owned 17 Acres of Land at Grafton Village and therefore could not pass title
for such land to the Plaintiff/Applicant.

(7) "


After hearing arguments, the Motion was allowed. The Learned Judge, Showers J, in giving her Ruling on 22nd May 2007, had this to say on the issue of the Statute of Limitation raised by the Appellant's solicitors in his arguments, which issue formed the basis of her conclusions on the application It reads:


"Counsel for the Plaintiff has submitted that the defendants' claim is now stale and statute barred in that the plaintiff has been in possession of the said land for




30 years now. Let me state that for the claim to be statue barred, the action must be for recovery of land. Here the defendants are not claiming recovery of land but have claimed that the plaintiffs predecessors in title have (not) got the relevant title to pass and have counterclaimed for the cancellation of his conveyance. With respect to counsel for the plaintiff on that basis I do not think their claim is state or statute barred They have exhibited a defence which to my view discloses triable issues. I believe they ought to be given a chance to put their case before the court particularly as this matter relate to the issue of land and pertain to land in a small community." (See page 219 of the Records)


The Learned Judge then made the following orders:


"1. That the Judgment entered against the Defendants/Applicants herein on the 21st day of December 2004 and all subsequent proceedings be set aside;

  1. That the Defendants/Applicants herein do file and serve their Defence and
    Counterclaim within 5 days from the date hereof.

  2. That the Plaintiff/Respondent do file a Reply and Defence to Counterclaim
    within 7 days from the date of service on him of the said Defence and

4. That the proceedings do take their normal course thereafter;
5. That the Defendants/Applicants pay the Costs thrown away."


On the 27th June 2007, the Court granted the Appellant leave to appeal to this Court against the order setting aside the Judgment of 21st December 2004; further proceedings were stayed pending the hearing and determination of the Appeal and this is the appeal that is now before us.


.There are five Grounds.of Appeal recorded at pages 221 - 223 of the Records; they read:


  1. That the decision is against the weight of the evidence.

  2. The Learned Trial Judge acted on wrong principles of law when she held that
    the defendants have a defence on the merits.

  3. The Learned Trial Judge failed to consider adequately or at all that the
    Conveyances-were dated 26th April 1977 and 30th October 1978 respectively
    and that the Appellant herein had been in continuous possession of those two
    pieces of land since April 1977 and October 1978 respectively and that any
    claim the Respondents may have had was already statute barred at the time the
    action commenced against the Respondents. (See Limitation Act 1961).

  4. The Learned Trial Judge failed to consider adequately that the first
    Respondent's husband witnessed the payment of part of the purchase price to




Mr. Adolphus Beola Huzzy for the sale of the land comprised in the Conveyance dated 30th October 1978, made between Charlotte Cole and Adolphus Huzzy of the one part and the Appellant here of the other part.

5. The Learned Trial Judge failed to consider at all that no member of the Grafton Community identified any part of that property owned by the Appellant as belonging to him or her. No conveyance was referred to and none was exhibited to either affidavit in support of the application to set aside the aforesaid judgment.


Counsel have both filed Skeleton Arguments. In his written submissions, Mr. S. M. Sesay, for the Appellant, argued grounds 1, 2 & 3 together. He submitted that the Appellant acquired the properties in dispute in 1977 and 1978 respectively; that he has been in full free and continuous possession thereof throughout the period the 1st Respondent's Husband was Headman of Grafton Village; that nobody had laid any claims on the properties since that time; that in any case even if there was a valid claim from any of the Respondents, that claim would have become statute barred by 2000 at
least. He submitted that on the authority of Evans v Bartlam, H.L. 1937 All E.R. 647 at page 656, as explained in the "Saudi Eagle", as a matter of common sense, there is no point in setting aside the judgment because the defence has no prospect of succeeding, the claim being a stale claim.


He submitted further that the Learned Trial Judge's conclusion quoted at page 219 was wrong; that under the Limitation Act 1961 the person who has acquired title by adverse possession is claiming that the rightful owner can no longer assert his title to the land; because by the statute, being in adverse possession of land for a certain number of years will make the adverse possessor the new owner of the property, and consequently the rightful owner who has been so dispossessed can no longer assert his title to that property; that from the evidence adduced, the Appellant has been in possession for upwards of 30 years and that by that possession, which had never been challenged by the Respondents or any other person in Grafton Village, the Respondents could no longer claim ownership of the said land even if they had any. He concluded that since the above finding forms the basis.of the Learned Trial Judge's Judgment, if found to be erroneous, then the whole Judgment is erroneous and ought to be set aside and the Judgment of 21st December 2004 restored.


Counsel adopted his above submissions in respect Grounds 1, 4 & 5. In addition, he drew our attention to the fact that the 1st Respondent's husband was Headman of Grafton Village when the Appellant purchased the properties in question, and that the 1st Respondent witnessed one of the payments made to her husband by the Appellant (See page 4); that throughout his tenure in office as Headman of the Village neither the 1st Respondent's husband nor any other person in Grafton Village ever laid claim on any of the Appellant's land. With regards to the 3rd Respondents, Counsel submitted that they \vere an unknown entity and not in existence at the time the Appellant bought the land and therefore have no title/claim to the land the Appellant is claiming.


As regards the Respondents' Defence and Counterclaim, Counsel pointed to the absence of documents of title evidencing ownership by any of the Respondents over the properties




in dispute; he submitted that none of the Respondents had claimed any part of the Appellant's land; that the 1st Respondent had even identified her husband's signature on the receipt of payment made by the Appellant for the land. Finally, Counsel submitted that from the evidence, there was no basis for setting aside the Judgment of 21st December 2004 and that by allowing the Respondent to proceed with the so-called Defence & Counterclaim would waste of the Court's time, the Defence being vexatious and merely an attempt by the Respondents to violate the Appellant's fundamental right to acquire and hold property. He urged that the appeal be allowed and the Judgment of 21st December 2004 be restored. Counsel relied on: Davies v Bickersteth 1964/66 ALR SL; Aminata Conteh v All Peoples Congress Party, unreported SC. CIV. APP. 4/2004 Supreme Court Judgment delivered on 27th October 2005; Kabia v Contehl964/66 ALR S.L 354 at 359; Evans v Bartlam H.L 1937 ALL ER, 647 at page 656; Alpine Bulk Transport Inc v The Saudi Eagle Shipping Co. Inc (The Saudi Eagle) [1988] 21 Lloyds Reports


In his reply, Mr. J. B. Jenkins-Johnston reminded us that the discretionary power of the Court to set aside a default judgment is unconditional. He referred us to para. 13/9/18 page 159 of The 1999 White Book on the point; he submitted that the instant matter concerns not only ownership of land, but also a claim for a Declaration of title, and on the authority of Semour Wilson v Abess 1979, and the dictum of his Lordship Livesey Luke the 'mere production in evidence of a Conveyance in fee simple is not proof of a fee simple title. The document may be worthless'. He said that as a general rule the Plaintiff must go further and prove that his predecessor-in-title had title to pass to him..." As regards the Respondents' Defence and Counterclaim, he submitted that paragraphs 1, 2, 5 & 6, thereof (See p. 10) contain triable issues which ought to be determined by the Court on the merits at a trial. He stressed that at this stage of the proceedings, all the Respondents are required to say is that there are triable issues which cannot be determined on interlocutory basis. Therefore, he submitted, the Learned Trial Judge exercised her discretion correctly based on legal principles. He urged that the appeal be dismissed and the matter proceeded with on the merits. He relied on the following authorities:


Kabia v Conteh (C/A) 1964/66 354; Basma vs Noureldine (WACA) 1950/56 271; Conteh vs Kabia - 1968/69 226; Seymour Wilson vs Abess, (Judgment of Livesy-Luke CJ.) supra at page 82.




The power to set aside a judgment obtained in default is given to the Court or a Judge under Order 41 Rule 2 of the High Court Rules 2007. This Rule states:


"2. Any verdict or judgment obtained where one party does not appear at
the trial may be set aside by the Court upon such terms as it thinks


The above rule also empowers the Court or Judge to impose conditions for setting aside a judgment if it thinks fit; this power which is entrusted to the discretion of the Court or Judge is unconditional. In this regard, the Courts have laid down certain rules to guide




them in the normal exercise of this discretion and one such rule is that where judgment is regularly obtained and a party wants to set this aside there must be an Affidavit of merits or the applicant must produce to the Court evidence that he has a prima facie defence (See also Evans v Bartlam, [1937] Vol. 3 All E. R. 646 supra).


According to the authorities, the 'primary considerations in exercising the discretion is whether the defendant's defence has merits to which the Court should pay heed as a matter of common sense. This is so as "there is no point in setting aside a judgment if the defendant has no defence" to the action. Similarly, if a defendant's defence has merits, the Courts will 'not prima facie desire to let a judgment pass on where there had been no proper adjudication'; furthermore, as a matter of common sense, the Court will take into account the explanation of the defendant as to how the default occurred.


We have looked at the pleadings and more particularly the Respondents' Defence and Counterclaim filed pursuant to the Order of 22nd May 2007. The sole question before the Court is whether or not the Learned Judge exercised her discretion rightly or wrongly in setting aside her own judgment and granting the Respondents leave to defence the action upon the defence set up by them. In such a case where a Judge has exercised his discretion to set aside such a judgment, the Court of Appeal will not interfere with the exercise of such a discretion except on grounds of law; also if it appears that on other grounds the decision will result in injustice being done, the Court has both the power and the duty to remedy it. This was so held by Lord Denning M.R. in two passages appearing in his Judgment in the case of Ward v James (3) [1966] 1 QB at 293 and 294; [1965] 1 All E.R. at 570 and 571 when he said:


" [I]n what circumstances will the Court of Appeal interfere with the discretion of the judge? At one time it was said it would interfere only if he had gone wrong in principle; but since Evans v Bartlam, that idea has been exploded.... This Court can, and will interfere, if it is satisfied that the judge was wrong It sometimes happens that the judge has given reasons which enable this court to know the considerations which have weighed with him; but even if he has given no reasons, the court may infer from the way he has decided, that the judge must have gone wrong in one respect or the other, and will thereupon reverse his decision."


The second passage is this:


" [w]hen a judgment by default is obtained regularly, the court or judge has a iscretion to set it aside upon such terms as it 'may think fit'. The discretion is in terms unconditional. Yet the courts have laid it down as an almost inflexible rule that there must be an affidavit showing a defence upon the merits, and this rule received the approval of Lord Atkin in Evans v Bartlam. "


The case of Evans v Bartlam (1) decided that the Court of Appeal is not limited to interfering with a judge's exercise of discretion only if of opinion that he acted on some wrong principle of law, but it also decided that the Court has the power and indeed the duty to interfere if of opinion that on other grounds, the Judge's discretion will result in



injustice. Lord Atkin in his speech in that case said, inter alia, [1937] A.C. at 480; [1937] 2 AII E. R. at 650);


"The principle obviously is that unless and until the Court has pronounced a judgment on the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure. "


In Alpine Bulk Eagle Shipping [1986] 2 Lloyd's Report 221 at 223, ("The Saudi Eagle"), their Lordships accepted that it is not sufficient to show a merely 'arguable' defence, but that the defence must both have a 'real prospect of success' and carry 'some degree of conviction'. In addition, it was also held that the Court must form a 'provisional view of the probable outcome of the action'.


The 'general indications' of the way in which the Court should exercise its discretion was derived by the Court of Appeal Evans vs. Bartlam was discussed and approved "The Saudi Eagle". The first (1) 'general indication' is that a judgment signed in default is a regular judgment from which, subject to (ii) below, the plaintiff derives rights of property. The second (2) is that the Rules of Court give to the Judge a discretionary power to set aside the default judgment which is in terms "unconditional and the Court should not "lay down rigid rules which deprives it of jurisdiction" (per Lord Atkin at p 186). The third, is that the purpose of the discretionary power is to avoid the injustice which might be caused if judgment followed automatically on default. Fourthly, the 'primary consideration' is whether the defendant "has merits to which the Court should pay heed" (per Lord Wright at p. 489) not as a rule of law but as a matter of common sense since there is no point in setting aside a judgment if the defendant has no defence. On the other hand if he had shown "merits" the... Court will not, prima facie desire to let a judgment pass on which there has been no proper adjudication (p. 489 and per Lord Russell of Killowen at p. 482). Fifthly, as a matter of common sense, though not making it a condition precedent, the Court will take into account the explanation as to how it came about that the defendant –


" .found himself bound by a judgment regularly obtained to which he could

have set up some serious defence (per Lord Russell of Killowen at p. 482) "


The standard indicated by each of their Lordship in the above case clearly contemplated that a defendant who is asking the court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success. In other words, it is not sufficient to show a merely "arguable' defence, but that the defence must have 'a real prospect of success' and 'carry some degree of conviction'. Put in another way, in order for the Court toy-arrive at. a "reasoned assessment of the justice of the case it must form a provisional view of the outcome if judgment were to be set aside and the defence developed".,




It is quite clear that the Judgment obtained on 21st December 2004 was regularly obtained according to our Rules. This made it incumbent on the defaulting party, in this case, the




Respondents, in applying to have that regular judgment set aside, to satisfy the judge that they do not only have a good defence on the merits, but a defence which has a real prospect of success . In this case the Respondents did exhibit a proposed defence to the application to set aside.


In their application before the Trial Judge, the Respondents contended that the Judgment entered against them, was obtained contrary to the rule of natural justice; that they were not given the opportunity to be heard at the trial. The Trial Judge however in her Ruling found that the Respondents were fully aware of the proceedings against them and were also reminded at the material time that their defence to the Appellant's claim had not been filed within the stipulated time. Furthermore, they were served with the Motion for Judgment taken out by the Appellant pursuant to which the judgment was obtained; they did not take the necessary action to be present at the hearing. The Trial Judge in her ruling said that the Respondents' argument on that point lacked merit (See page 218 -219), although in exercising her discretion, she held that the Respondents "should be given a chance to put their case before the Court particularly as this matter related to the issue of land and pertain to land in a small community". She set aside the Judgment purely on that ground. There was no suggestion in the Judge's Ruling that she considered the merits of the proposed Statement of Defence, in order to ascertain whether there were any 'arguable issues with real prospect of success' therein. We find the Learned Judge's Ruling on this aspect very inadequate.


For that reason in order for us to come to "a reasoned assessment of the justice of the case, we have to examine the issues raised in the defence filed in order 'to form a provisional view of the outcome. This assessment is not being done with a view to trying the merits of the case, or to consider the probability of its success or otherwise; it is to ascertain whether the issues in the defence 'carry some degree of conviction' as provided by the authorities on the issue. And for this, we now have to apply the "general indications" earlier referred to, to the facts of the present case in order for us to come to some conclusions.


Learned Counsel for the Appellant's contention in this appeal is that the defence put up by the Respondents to the Appellant's claim has no prospect of succeeding as it discloses no triable issues; that Trial Judge failed to consider if any useful purpose would be served by setting aside the judgment in the circumstances.


Mr. Jenkins-Johnston on the other hand has submitted that there are three triable defences; the first is that the Appellant's predecessors-in-title did not own 6.5 Acres and 10.6 Acres of Land in Grafton Village and therefore have no title to pass to him; the second is that the land the subject matter of the action belonged to several families for generations and it cut across the entire village; and the third, is that the matter concerns a claim for a declaration of title and such a claim must be determined by way of a trial. He referred us to paragraphs 1, 2, 5, & 6 of the Statement of Defence which he said contain these triable issues.


It will be pertinent at this stage to examine the paragraphs relied on by Learned Counsel for the Respondents as triable issues in the defence. I shall reproduce these here in extenso:




"1. The Defendants deny paragraph one (1) of the Particulars of Claim and aver that the Plaintiffs alleged Predecessors-in-title Charlotte Cole did not own 6.5 Acres of Land in Grafton Village as alleged in the said Deed of Conveyance dated 29th April 1977 and could not therefore have passed any good title to the Plaintiff herein.

2. The Defendants deny paragraph two (2) of the Particulars of Claim and aver that the Plaintiff's alleged Predecessors-in-title Charlotte Cole and Adophus Huzzy did not own 10.6 Acres of Land in Grafton Village as alleged in the said Conveyance dated 30th October 1978 and could not therefore have passed any good title to the Plaintiff herein."

5. The Defendants aver that the Land which the Plaintiff is now alleging to
be his, cuts right across the village and has therefore interfered with lands
which have been owned, possessed and cultivated by several families in
Grafton Village for several generations before the Plaintiff came onto the


6. The Defendants deny threatening the Plaintiff as alleged or at all, and aver
that they and several other indigenes of Grafton Village have tried to
reason with the Plaintiff and to explain to him that by insisting on his
claims in his purported Conveyances he is dispossessing several families
in Grafton Village, but the Plaintiff has refused to listen to anyone."


The averments in Paragraphs 1 and 2 of the Statement of Defence are merely a general denial of the claim and an assertion that the Appellant's vendor did not own the amount of land claimed in his Conveyances. This with respect to Counsel is not an adequate defence or answer to the contention that the Appellant is the fee simple owner of the disputed lands by virtue of having purchased the same from one Charlotte Cole and Charlotte Cole and Adophus Huzzy who lived in Grafton Village at the material time, and the fact that the said Charlotte Cole was one time Headwoman of the Village. By merely saying that the Appellant's predecessors-in-title did not own the amount of land stated in his Title Deeds, the Respondents is here in fact relying on the weakness, if any, of the Appellant's title. It is trite law that for such a claim or counterclaim to succeed the claimant must succeed on the strength of his own title and not on the weakness of the opponent's title. We find the averments in the Statement of Defence very vague. The Respondents have not presented or alleged any claim of their own over the disputed land in their defence, nor have they alleged any title to convince the Court that their defence is worth considering at a trial. To say only that the land in dispute is "owned by several families in Grafton Village for generations' is too general and vague a defence and does not say much by way of a defence to the claim against them. They have not shown by what authority they claim to be acting for 'the several families' who lived in the village for several generations. Where a Plaintiff by his pleadings has asserted his title or has shown prima facie proof of title, it behoves the Defendant counterclaiming for a declaration of title against the Plaintiff's title to show by his pleadings, prima facie evidence of title, bearing in mind the principle of law that in such claims, he must also succeed on the strength of his own title and not on the weakness of the Plaintiff's title.



Order 18 Rule 7 of the 1999 White Book provides:


"Every pleading must contain and contain only a statement in a summary form of the material facts on which the party relies for his claim or defence as the case may be and the statement must be as brief as the nature of the case admits.


Only facts which are material must be pleaded"


In this case the Respondents' defence does not contain material facts on which their defence is based. In our view, relying on the authorities, in order to arrive at a reasoned assessment of the justice of this case, we need to form a provisional view of the probable outcome of the defence, if the ruling setting aside the judgment in this case is to be up held.


The averment that the land in dispute belongs to several families in Grafton Village for several generations without stating who these families are or how they came to own the disputed land does not carry any degree of conviction to support the defence. Furthermore, the Statement of Defence has not shown whether the 3rd Respondents - The Grafton Village Committee is a legal entity that can sue or be sued or whether such a Committee has documents of title or whether indeed land in the Western Area of Sierra Leone can be held by any group of unidentified persons on behalf of communities in the same way as the law permits land in the Provinces to be held by tribal authorities on behalf of those communities. Counsel for the Respondents has argued that the Respondents need only present an arguable defence; but an arguable defence in our view must carry some degree of conviction according to established legal authorities.


The question therefore that we have to answer consider is: Has the Respondents in this case shown merits in their defence to which the Court should pay heed when considering the exercise of its discretionary power? We do not think so. We find the averments in paragraphs 1 & 2 if the Statement of Defence very vague and lacking in merits or particulars; merely to aver that the Appellant's predecessors-in-title do not own the amount of land stated in the Appellant's conveyances is not, with respect, an answer or defence to the Appellant's contention that his the fee simple owner of the disputed land by virtue of his having bought the same from Charlotte Cole and Adophus Hazzy who lived in Grafton at the time and claimed to be the owners thereof. The Respondents have not defined their land with any degree of certainty and in fact they have not identified any part of the property occupied by the Appellant as theirs. The Respondents' Affidavit filed in support of the application to set aside the judgment, parts of which I have reproduced earlier did not refer to any document of title of the Respondents, nor that they are the legal owners of the properties claimed by the Appellant in the Statement of Claim. We do not think that there is any substance in the purported defences raised in the Statement of Defence.


On the whole considering the suggested defences in the Respondents' Statement of Defence, we do not consider that any of these have any prospect of success. And looking at the case in the light of the pleadings filed in the action and the facts presented by the documents and affidavits before us, we can see nothing in the defence set up that presents any degree of conviction or prospect of success.




The issue in respect of the Respondents' Counter Claim for a declaration would have been simple if any of the Respondents have themselves presented individual claims of their respective entitlements to the land in dispute or if the land in respect of which they are claiming the declaration is capable of being identified with any degree of certainty, or more particularly whether they claim on the strength of their own individual or collective titles and not relying on the weakness of the Appellant's title. Accordingly, as in the defence presented, we do not think that the claim for a declaration has any prospect of success.


While it is not normally the case for an Appellate Court to interfere with the exercise of a Judge's discretion except on grounds of law, yet in this case, we are constrained to do so, as taking into consideration the pleadings as well as the circumstances of the case, we are of the view that the Trial Judge's decision will result in injustice being done. Therefore on this ground alone we have a duty and the power to remedy the situation by interfering with the Judge's exercise of her discretion.


In the premise, we hold that the Trial Judge, in exercising the discretion conferred on her by the rules, failed to consider both (a) whether any useful purpose would be served by setting aside the judgment, and obviously no useful purpose would be served if there is no possible defence to the action, and (b) how it came about that the Respondents found themselves bound by a judgment regularly obtained, to which they could have set up some serious defence.


In view of the foregoing we hold that the Learned Judge not only acted on wrong principles of law, but we are also of the view that.to allow her decision will result in injustice being done. In the circumstances, we will allow the appeal and Order as follows:-


  1. The Order of the High Court dated 22nd May 2007 is hereby set aside;

  2. The Judgment of 21st December 2004 is hereby restored;

  3. The costs of and occasioned by this appeal be borne by the Respondents
    such costs to be taxed.